Paloma [2002] QBCCMCmr 2 (8 January 2002)

DJ ReardonREFERENCE: 0005-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9524
Name of Scheme:	Paloma
Address of Scheme:	93 - 97 Albatross Avenue, Mermaid Beach

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Nannette Blair, Owner of Lot 1,

DJ ReardonI hereby order that the application for the following interim orders-

“1. To declare invalid motions 3,4 & 5, of the attached (1), notice of an EGM for Paloma Body Corporate, for 11th January, 2002. As they are dealing with improvements and should be decided by Special resolution.

2. That the committee give owners the opportunity to vote separately on the repairing or the demolition and the rebuilding of the gazebo.

3. That the committee provide owners with a detailed specification of the BBQ gazebo, so that owners can consider their options before voting on the recommendations the committee have made, for the demolition and rebuilding of this building.

4. Also that the committee offer the gazebo and landscaping, as two separate motion (sic) giving owners the chance to vote on one or both, as they wish.”

is dismissed.

I further order that the resolutions, if any, passed in respect of motions 3, 4 or 5 to be put to an extraordinary general meeting of the body corporate on 11 January 2002, must not be implemented or otherwise acted upon by the body corporate, pending determination of the application by final order2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0005-2002

“Paloma” CMS 9524

The applicant, Nannette Blair the Owner of Lot 1, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“I wish to apply for an interim order,

1.	To declare invalid motions 3,4 & 5, of the attached (1), notice of an EGM for Paloma Body Corporate, for 11th January, 2002. As they are dealing with improvements and should be decided by Special resolution.

2.	That the committee give owners the opportunity to vote separately on the repairing or the demolition and the rebuilding of the gazebo.

3.	That the committee provide owners with a detailed specification of the BBQ gazebo, so that owners can consider their options before voting on the recommendations the committee have made, for the demolition and rebuilding of this building.

4.	Also that the committee offer the gazebo and landscaping, as two separate motion (sic) giving owners the chance to vote on one or both, as they wish.”

The applicant has sought the above as both interim and final orders.

Section 225(1) provides that an adjudicator may make an interim order if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates. An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

This application is primarily concerned with the validity of motions 3, 4 and 5 as provided on the notice of extraordinary general meeting dated 20 December 2001. The extraordinary general meeting in question is scheduled for 11 January 2002. The motions appear to relate to proposed landscaping of common property gardens, and a proposed renovation of a common property BBQ Hut.

In this particular decision I am solely concerned with the application for interim orders. In any consideration of an application which seeks the making of an interim order, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 225(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the applicant does need to establish that the circumstances of the application warrant the making of an interim order.

An interim order will not be made, or will be refused, in circumstances where the only urgency relates to the applicant’s desire to resolve or expedite the matters in dispute, or where the nature of the circumstances are such that the matter is not capable of being dealt with in the context of an interim order. Again, it is not possible to define these circumstances.

I consider that the interim orders sought by the applicant are effectively seeking a final determination concerning the validity of motions 3, 4 and 5 proposed for consideration at the extraordinary general meeting to be held on 11 January 2002. Further, I consider that affected parties, particularly the committee, should be afforded a proper opportunity to make a written submission in response to the application before a final determination is made.

Accordingly, this application for an interim order is refused.

However, to ensure that the status quo is maintained pending a final determination, I intend to order that the resolutions, if any, passed in respect of motions 3, 4 or 5 to be put to the 11 January 2002 meeting, must not be implemented or otherwise acted upon by the body corporate, pending determination of the application by final order.

I do wish to emphasise to parties that I am dismissing this application for interim orders as sought by the applicant on the basis that the nature of interim orders sought by the applicant are not appropriate for resolution as interim orders. In dismissing the application for an interim order, I am not making any determination as to the merits of the application for final orders.

This matter will now be investigated in accordance with the usual processes undertaken by this office. A final order regarding the application will be made in due course.

All parties should note the provisions of section 225(2) of the Act which provides that -

An interim order -

a)	has effect for a period (not longer than 3 months) stated in the order; and
b)	may be extended, renewed or cancelled by the adjudicator until a final order is made; and
c)	may be cancelled by a later order made by the adjudicator; and
d)	if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

All parties should be aware of this section and its effect on this interim order. If the final order is delayed for some reason, the applicant may need to request a renewal of the interim order, before a final order is made. The onus of renewing an interim order rests with the applicant. This office will not automatically renew an interim order.
2n

DJ ReardonREFERENCE: 0005A-2002

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	9524
Name of Scheme:	Paloma
Address of Scheme:	93 - 97 Albatross Avenue, MERMAID BEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Nannette Blair, Owner of Lot 1,

DJ ReardonI hereby order that the interim order made on 8 January 2002, as follows-

I further order that the resolutions, if any, passed in respect of motions 3, 4 or 5 to be put to an extraordinary general meeting of the body corporate on 11 January 2002, must not be implemented or otherwise acted upon by the body corporate, pending determination of the application by final order

is extended until such time as a final order to the application is made.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0005A-2002

“Paloma” CMS 9524

The applicant, the Owner of Lot 1, sought interim orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), and on 8 January 2002, the following interim order (Ref 0005-2002) was made-

DJ ReardonI hereby order that the application for the following interim orders-

“1. To declare invalid motions 3,4 & 5, of the attached (1), notice of an EGM for Paloma Body Corporate, for 11th January, 2002. As they are dealing with improvements and should be decided by Special resolution.

2. That the committee give owners the opportunity to vote separately on the repairing or the demolition and the rebuilding of the gazebo.

3. That the committee provide owners with a detailed specification of the BBQ gazebo, so that owners can consider their options before voting on the recommendations the committee have made, for the demolition and rebuilding of this building.

4. Also that the committee offer the gazebo and landscaping, as two separate motion (sic) giving owners the chance to vote on one or both, as they wish.”

is dismissed.

I further order that the resolutions, if any, passed in respect of motions 3, 4 or 5 to be put to an extraordinary general meeting of the body corporate on 11 January 2002, must not be implemented or otherwise acted upon by the body corporate, pending determination of the application by final order2n

By facsimile dated 2 April 2002, the applicant requested that the interim order be renewed.

Section 225(2) of the Act states-

An interim order -

e) has effect for a period (not longer than 3 months) stated in the order; and

f) may be extended, renewed or cancelled by the adjudicator until a final order is made; and

g) may be cancelled by a later order made by the adjudicator; and

h) if it does not lapse or is not cancelled earlier - lapses when a final order is made by the adjudicator.

In accordance with section 225(2)(a) the interim order made on 8 January 2002 is due to lapse on 8 April 2002. In the circumstances, I am satisfied that the interim order should be extended from the date of this order (3 April 2002), pending resolution of the dispute subject of the application.2n